Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard v Piers Fisher-Pollard

[2018] NSWSC 500

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard v Piers Fisher-Pollard [2018] NSWSC 500
Hearing dates:	12, 13, 14, 15, 16, 21 March, 23 March 2018 (oral subs)
Decision date:	24 April 2018
Before:	Sackar J
Decision:	See paras [551]-[553]
Catchwords:	EQUITY – general principles – unconscionability – unconscionable dealing – unconscionable conduct – special disability or disadvantage – independent advice – series of property transactions entered into between mother and son – lack of independent advice – whether property transactions should be set aside as unconscionable   EQUITY – general principles – undue influence – whether property transactions a product of undue influence
Legislation Cited:	Conveyancers Licensing Act 1995 (NSW) Conveyancers Licensing Act 2003 (NSW) Conveyancers Licensing Regulation 2015 (NSW) Real Property Act 1900 (NSW)
Cases Cited:	Al Maha Pty Ltd v Coplin [2017] NSWCA 318 Australia and New Zealand Banking Group Limited v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 Banks v Goodfellow (1870) LR 5 QB 549 Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81 Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 Carr v Homersham [2018] NSWCA 65 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41 Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 McCulloch v Fern [2001] NSWSC 406 The State of New South Wales v Citco Industries Pty Ltd (2001) 53 NSWLR 451; [2001] NSWCA 406 Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49 Turner v Supreme Court of Queensland [2003] AATA 887
Texts Cited:	Second Reading Speech to the Conveyancers Licensing Bill 2003 (NSW), New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 April 2003
Category:	Principal judgment
Parties:	Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard (Plaintiff) Piers Fisher-Pollard (Defendant)
Representation:	Counsel: J Knackstredt (Plaintiff) R S Bell (Defendant)   Solicitors: Schweizer Kobras (Plaintiff) Rickard Lawyers (Defendant)
File Number(s):	2016/292885

Judgment

Background facts

Legal principles

Unconscionable conduct

Undue influence

Capacity

Parties’ submissions

Preliminary observations

Plaintiff

Defendant

Tracing of surplus proceeds of sale

Lay evidence

Evidence of Ms Calcutt

Evidence of Ms Roxburgh

Evidence of Mr Guy Fisher-Pollard (GFP)

Evidence of Mr Miles Fisher-Pollard (MFP)

Evidence of Mr Piers Fisher-Pollard (the Defendant)

Evidence of Mr Mawer

Legislative framework regulating conveyancers

Evidence of Mr Christie

Evidence of Mr Anstee

Evidence of Mr Noble

Medical evidence

Dr Nadeem Bhanji

Dr Ros Mulholland

Dr Humphrys

Conclusions on the medical evidence

Consideration of the lay witnesses

Conclusion

Judgment

1. The proceedings concern an application by the Plaintiff in Amended Summons dated 4 November 2016, seeking a declaration that the Plaintiff is the beneficial owner of the property at 31 Prestons Lane, Tyagarah NSW 2481, with folio identifier 2/631878 (Amended Summons [13]). The Plaintiff also sought a declaration that the Defendant holds the property on trust for the Plaintiff (Amended Summons [14]).

2. Further or in the alternative, the Plaintiff sought a declaration that it would be unconscionable for the Defendant to deny that the Plaintiff is the sole beneficial owner of the Property (Amended Summons [15]). The Plaintiff’s claim is one of unconscionability and undue influence, in that the relevant property transactions are such that they ought to be set aside as between the Plaintiff and the Defendant.

3. The Plaintiff placed a caveat on the Tyagarah property on 22 December 2015 (Points of Claim [23]), with the Defendant serving a Notice to Caveator of Proposed Lapsing of Caveat on 14 September 2016 (Points of Claim [24]). The caveat was extended on 30 September 2016 until further order (Points of Claim [25]).

Background facts

4. Where I refer in this judgment to persons by their surnames or an acronym, I intend no disrespect.

5. Gillian Fisher-Pollard (the Plaintiff), was born on 13 June 1932 and married John Fisher-Pollard (Mr Fisher-Pollard) on 1 September 1956.

6. Subsequent to this marriage, Guy Fisher-Pollard (GFP) was born on 14 March 1959, Miles Fisher-Pollard (MFP) was born on 5 February 1966 and Piers Fisher-Pollard (the Defendant) was born on 7 May 1967. These are the couple’s three sons.

7. The Fisher-Pollard family moved to and lived in South Africa from 1973 to 1980. From 1980 to 1991 the Plaintiff and Mr Fisher-Pollard lived in 79 Kuringai Ave Turramurra NSW 2074.

8. On 26 October 1987, the Defendant was convicted of mid-range PCA leading to a fine and disqualification from driving (TB 1162-72).

9. On 20 June 1988, John Fisher-Pollard made a will giving his estate to the Plaintiff or if she died dividing the estate equally between the couple’s three sons (TB 669).

10. On 20 June 1988, the Defendant was convicted of mid-range PCA leading to a fine and disqualification from driving (TB 1168).

11. In 1991, Mr Fisher-Pollard and the Plaintiff purchased the property at 57 Allenby Road Tuross Head NSW 2537 as joint tenants (TB 670, 1017) (Tuross Head Property).

12. On 25 June 1993, Mr Fisher-Pollard and the Plaintiff purchased the apartment at 2/27 York Road Queens Park as joint tenants (TB 671). The Defendant lived in this property occasionally over the succeeding years (York Road Property).

13. In December 1993, GFP moved to Canada (Guy Fisher-Pollard Affidavit [9]).

14. In the years between 1999 and 2001, the Defendant was convicted of drug trafficking in Germany and sentenced to two years in gaol. He served 18 months before being released. As a result of that conviction, he was prohibited from travel in Europe, the United States and Canada (Miles Fisher-Pollard Affidavit [44]).

15. The Plaintiff became a patient of Hugh Humphrys at Moruya Medical Centre in 2001 (Dr Hugh Humphrys Affidavit [8]). On 9 November 2005, Dr Humphrys noted in the Plaintiff’s case history (TB 1066):

[R]esistant to further h/t, cholesterol Rx

Joint pain. Limbs – using canadian crutch – feels click R hip with walking – to see Dr Walter 1/12.

16. Before 2008, Faye Roxburgh and her partner Bill Roxburgh observed the Plaintiff’s increasing forgetfulness (Faye Roxburgh Affidavit [15]).

17. From 2008 to 2009, Jean Calcutt observed the Plaintiff losing her memory (Jean Calcutt Affidavit [16]-[17]).

18. On 12 August 2009, Dr Humphrys received a letter from John Fisher-Pollard raising concern about his wife’s increasing cognitive deterioration. Dr Humphrys noted (TB 1071):

[L]etter from husband (confidential) – re memory loss last 3-4/12, no insight, resistant to lx & Rx had ?TIA in 3/09.

19. On 25 August 2009, Dr Humphrys carried out an MMSE screening test which scored 28/30. He noted (TB 1072):

Mini Mental State Examination performed – the score of 28 indicates that no significant cognitive impairment has been identified.

20. On 28 October 2009, the Defendant was convicted of possessing a prohibited drug, resulting in a bond and an order that the drug be destroyed (TB 1167-70).

21. On 17 February 2010, Dr Humphrys noted with respect to the Plaintiff (TB 1073):

Confused. Memory loss rang 3x over 2/24 in 1/7 re same script – kept forgetting.

22. On 23 April 2010, Dr Humphrys made further observation regarding the Plaintiff (Dr Hugh Humphrys Affidavit [26]):

[R]ecent OS trip – cruise – poor memory of places visited.

23. In July 2010, John Fisher-Pollard had a conversation with Jean Calcutt about arranging care for the Plaintiff after his death (Jean Calcutt Affidavit [25]-[26]).

24. In July 2010, GFP travelled to Australia to stay with his parents Mr Fisher-Pollard and the Plaintiff, whilst John had surgery to remove a cancerous tumour on his leg (Guy Fisher-Pollard Affidavit [19]).

25. On 29 November 2010, Dr Humphrys made a note relating to the Plaintiff’s declining cognition. Inter alia, he wrote (TB 724):

Recall changed for MMSE from 24/08/2010 to 30/11/2011.

Recall changed for MEMORY LOSS from 03/03/2010 to 30/11/2011.

Recall changed for MMSE from 30/11/2011 to 30/04/2011.

26. On 12 December 2010, the Defendant was convicted of low-range PCA, leading to disqualification from driving for six months from 7 February 2011 to 7 August 2011 (TB 1164-65).

27. From 6 August 2011 to 8 August 2011, the Plaintiff was admitted to Canberra Hospital. The Discharge Summary noted her presenting history as (TB 732, 1050-3):

78 year old female presented to ward 14B from South Coast NSW to visit her husband who was admitted for further Ix and Mx of L pleural effusion on B/G sarcoma. She drove herself to TCH and requested admission so that she could be close to her husband. On arrival Pt was quite confused and emotional, with repetitive questioning / conversations. Pt stated to nursing staff that she may hurt herself if not able to be with her husband. Discussion with the Pt’s son revealed a long history of “dementia-type symptoms” but not definitive diagnosis. Dr Craft to accept care of pt for a social admission until more reasonable alternatives could be made.

28. On 12 August 2011, the Plaintiff revoked her husband Mr Fisher-Pollard’s appointment as enduring power of attorney and appointed the Defendant as enduing power of attorney (Exhibit P12).

29. On 15 August 2011, the Defendant called GFP to advise him their father John was in hospital. From 17 August 2011 to 11 September 2011, GFP visited Australia to visit his parents (Guy Fisher-Pollard Affidavit [19]).

30. On 17 August 2011, MFP received a telephone call from the Defendant advising him their father John was terminally ill. MFP flew to Sydney with Irena Majcen on 18 August 2011, before returning on 28 August 2011 (Miles Fisher-Pollard Affidavit [12]; Irena Majcen Affidavit [5]).

31. On 23 August 2011, the Plaintiff handwrote a document outlining the financial affairs of her husband John. This was provided to the Court (Exhibit D2; P4). It included details of John’s coin collection and annuities.

32. On 30 August 2011, John Fisher-Pollard died (TB 783).

33. On 9 September 2011, the first recorded contact between the Defendant and Mr Mawer occurred regarding the purchase of a property in Grafton Street, Bondi Junction (Grafton Street Property) (TB 734-735). On that day, Mr Mawer opened a conveyancing file for the purchase of the Grafton Street Property, as well as the sale of the York Road Property. In this file the Plaintiff was listed as the vendor and the Defendant as an other party (Exhibit P9).

34. On 10 September 2011, an agency agreement for the sale of the York Road Property was issued by Richardson & Wrench Bondi Junction. The Plaintiff was listed as the principal for the sale (TB 797-800).

35. On 11 September 2011, GFP left Australia (Guy Fisher-Pollard Affidavit [19]).

36. On 12 September 2011, a contract for the purchase of the Grafton Street Property was signed and exchanged with the Defendant as the purchaser for $930,000.00 (TB 743). On that day, Mr Mawer provided the Defendant with a costs agreement concerning this sale (TB 745-6). A deposit on the Grafton Street Property of $46,500.00 was paid from a cheque drawn on the Plaintiff’s bank account (TB 744).

37. On 17 September 2011, the Defendant emailed GFP (TB 747-51):

Dad’s initial instructions were to use his account ‘1444’ – a gold Visa debit. So we did, and it went gradually from around $35K in Canberra to $31K when he died. All expenses I outlayed on their behalf were on that … Centrelink also offer a carer’s pension that I would no doubt be eligible for with a certificate from Dr Danny …

38. On 22 September 2011, the Defendant instructed Mr Mawer to organise a contract for sale of the Tuross Head Property (TB 755) and he opened a conveyancing file for the sale of this property. In this file the Plaintiff was listed as the vendor and the Defendant as an other party (Exhibit P9).

39. On 23 September 2011, L J Hooker Tuross Head issued a sales inspection report and exclusive agency agreement for the sale of the Tuross Head Property with the Plaintiff listed as the principal alone (TB 756). On 26 September 2011, Mr Mawer made the following file note (TB 757):

The client said:

[D]ue to many of my father’s assets being frozen until the will executed (a very simple will), everything real and personal goes to my mother over whom I have power of attorney

This is being held back as we wait for an official death certificate from Births, Deaths and Marriages

The 5% I can have within days, from two investments my father held that are in his and my mother’s name

Dad died on August 30, some institutions are accepting the form from the hospital that was signed by three doctors (due to Pacemaker and cremation), others need the official BDM form.

40. With respect to his dealings with the Defendant and the Plaintiff, Mr Mawer noted in his affidavit of 6 July 2017:

[4] Details noted are a summary and not all communications or conversations. At each and every meeting or communication with Gillian I was and remain completely satisfied as to her mental capacity.

…

[7] I understood earlier Gillian was the contemplated purchaser but in a meeting at my office she instructed me she wanted it bought in Piers’ name as sole title holder.

[8] I quizzed her about this … I made a point of satisfying myself about Gillian’s understanding the effects of her instructions.

41. On 27 September 2011, a home loan account was opened by the Plaintiff and the Defendant jointly with St George Bank (TB 1478-9).

42. On 30 September 2011, two withdrawals were made from the Plaintiff’s bank accounts of $32,208.00 and $5,410.00 respectively for related costs of the purchase of the Grafton Street Property (TB 1478-9).

43. On 30 September 2011, the Plaintiff signed a Notice of Death in respect of her husband concerning both the Tuross Head Property and York Road Property originally purchased by the couple (TB 772).

44. On 5 October 2011, the Defendant sent an email to his brother MFP. This email included the statements (TB 775-8):

I was trying to explain its only been a month since dad died and mum is in no way stable yet (crying every morning how she misses dad etc etc) … [Her geriatric specialist may] provide help with long term memory loss, and the less stressed Mum is the better her short term memory is.

45. On 13 October 2011, Mr Mawer undertook a Notice of Assessment for purchase of the Grafton Street Property. In this assessment the Defendant was listed as the party to the transaction and the purchaser (Exhibit P9).

46. On 14 October 2011, Mr Mawer provided the Notice of Death of John Fisher-Pollard to the loan manager of St George Bank Bondi Junction (TB 780). On 17 October 2011, Mr Mawer provided a contract for sale of the Tuross Head Property to L J Hooker Tuross Head.

47. On 20 October 2011, various payments including stamp duty were paid for purchase of the Grafton Street Property (TB 773).

48. On that same day, the Plaintiff made a will dividing her estate equally between her three sons GFP, MFP and the Defendant. This will appointed the Defendant as sole executor and trustee of her will and estate, and provided the three sons her estate as tenants in common in equal shares (TB 1139):

1. I revoke all former Wills and Testamentary Dispositions made by me and I declare this to be my last Will and Testament.

2. I appoint Piers Hugh Penwith Fisher-Pollard to be the Sole Executor and Trustee of this my Will and estate.

3. I give the whole of my estate of whatsoever nature or kind and wheresoever situated to my three children John Guy Cornwall Fisher-Pollard, Miles Mark St Just Fisher-Pollard and Piers Hugh Penwith Fisher-Pollard as tenants in common in equal shares.

49. On 24 October 2011, the Plaintiff entered into a mortgage over the Tuross Head Property and York Road Property as security for a loan with St George Bank of $930,000.00. The Plaintiff was listed as the sole mortgagor (TB 790, 1478-9). The loan was used to pay the balance of the purchase price, $930,000.00 for the Grafton Street Property (TB 791).

50. On 13 November 2011, the Defendant sent MFP a text message recorded on his email. This message included the statement (Exhibit P5):

At the moment a bit fatigued by looking after Mum: dementia is a horrible, cruel thing; rationality and common sense count for nothing.

51. On 19 November 2011, a sales inspection report and exclusive agency agreement was issued by Richardson & Wrench Bondi Junction for the sale of the York Road Property with the Plaintiff listed as the sole principal (TB 797-800). An amount of $4,637.00 was paid from the Plaintiff’s Retirement Access Plus account to fund the marketing of this sale (Plaintiff’s Retirement Access Plus Account Statement; TB 801-2).

52. In December 2011, MFP and Irena Majcen visited the Plaintiff for Christmas celebrations (Miles Fisher-Pollard Affidavit [24]-[29]; Irena Majcen Affidavit [14]-[35]).

53. On 6 December 2011, L J Hooker Tuross Head sent sales advice to Mr Mawer informing him that a sale had been successfully negotiated on the Tuross Head property. In this advice the Plaintiff was listed as Mr Mawer’s client (TB 808, 1028).

54. On 8 December 2011, the Plaintiff visited Dr Elizabeth Harper at War Memorial Hospital. Dr Harper conducted an MMSE screen test with a result of 30/30 (although Dr Bhanji contends the true total should be 26/30, TB 158). Dr Harper noted (TB 1256-8):

It was difficult to get a history about what had happened recently as she was crying much of the time. She feels that otherwise her health is well and she does not have any underlying medical problems or symptoms. She admits that her memory is not as good however this is only in the last three to four weeks and perhaps worse with all of the trauma relating to her husband’s death … She reports that sometimes her son will tell if she has forgotten various things.

55. On 14 December 2011, contracts were exchanged for the sale of the York Road Property, with the Plaintiff listed as the vendor (TB 815).

56. Apparently on 20 December 2011, the Plaintiff drafted a letter to her son GFP (although seemingly she never sent it). She initialled any changes she made to the document and wrote ‘Date!’ above the recorded date of 20 December 2011. She recorded, amongst other observations, the following (Exhibit D3):

I could not be better cared for, loved and considered than I am by Piers. He has ALWAYS asked me before doing ANYTHING social, managerial, secretarial or financial on my behalf – and I have asked him to assist me in carrying out my wishes and desires. I could not have achieved this myself and I thank him for taking over some of Dad’s so meticulous, loving and caring daily chores, and I thank him for carrying out my ideas.

Not being an idiot, mentally challenged, unable to function normally or take care of myself I find it offensive that you think otherwise. As for the house in Tuross Head, I felt I could not live there without my so loving and loved husband. I do have friends in and around Sydney and Tuross. Next year I will be sure to visit them all.

If you have doubts about my health, well-being, happiness or comfort PLEASE be reassured that all the above (maybe except for complete happiness) are being exceptionally well attended to.

57. On 22 December 2011, the contract for the sale of the Tuross Head Property was exchanged, with the Plaintiff listed as the sole vendor (TB820-1).

58. On 7 February 2012, a simultaneous settlement of the Tuross Head Property and York Road Property was effected with net proceeds of sale deposited into a joint loan account to discharge the mortgage over the Grafton Street Property. The York Road Property was sold for $681,000.00 (TB 815) and the Tuross Head Property was sold for $635,000.00 (TB 820). The Defendant was listed as the purchaser of the Grafton Street Property for $930,000.00 (TB 743; Exhibit P9).

59. On 19 April 2012, a dementia nurse Jai Nandra made a home visit to the Plaintiff, who performed an MMSE in which the Plaintiff scored 28/30 (TB 1260). No record of the actual MMSE test is available. Concerning a previous visit to the Plaintiff’s home, Ms Nandra stated (TB 1259-60):

Spoke to client’s son Piers and he reported that his mum is resistant to all services and refuses to see anyone or let anyone visit her at home. After her husband’s death she is very depressed and cries everyday which is difficult for Piers as well to see his mum like that.

…

She got teary once when she spoke about her husband but denies any depression.

60. On 1 May 2012, the Plaintiff was assessed at a Mental Health Triage due to a referral from a community nurse. This triage report noted (TB 1230):

Patient of Dr Harper who saw her in December.

No problems then MMSE 30/30. Now concern re: mood in the context of grief (Hb 4yrs ago and son recent MVA). Also concerns about cognition – recent MMSE = 28/30

Apparently tearful daily.

…

Current functioning and supports:

Lives with son.

Son reports mother’s dementia is worse.

Loses things leaves herself notes.

Still driving a car!

Not cooking anymore can’t live alone.

Soils her underware (sic) washes it in bathroom sink.

Hy falls uses stick.

61. From 18 May 2012 to 20 May 2012, her friends Faye Roxburgh and Jean Calcutt visited the Plaintiff in the Grafton Street Property (Faye Roxburgh Affidavit [29]-[34]; Jean Calcutt Affidavit [36]).

62. On or about 8 June 2012, the Plaintiff visited Dr Ros Mulholland. She scored 11/26 for memory recall in the ACE-R test and 27/30 on the MMSE test (incorrectly scored as 30/30) (TB 1212-25). Dr Mulholland was referred to the Plaintiff by Dr Daniel Hameiri (TB 851-2) who had also consulted Dr Elizabeth Harper (TB 809-10). Dr Mulholland observed in her notes for Mental Health Assessment, inter alia, as follows:

63. At TB 1219:

Pt very clear that she did not want further In of memory – aware of possibilities & R options.

Requested … solicitor so that she can alter will to leave her current flat to youngest son.

64. At TB 1220:

Mostly independent

Manages own money day-day

Son has power of attorney and helps with M. finances (Piers)

65. At TB 1221:

Warm, engaging, very good sense of humour

…

No abnormality

No depressive cognitions

No psychosis

…

Insight and judgment:

Retarded insight – memory a bit attributed to age and grieving

66. At TB 1224:

Hb died last yr

…

Wouldn’t mind if she died to be with him

No suicidal thoughts

…

Lives with son since move to Sydney – going well

Son – 2-3 yrs – hx memory ∆ - repetitive / losing things

Wants to change will so the flat she is living in is left to youngest son, other 2 sons – already have own property and families – she has already helped her older two buy property

Changing will freely, is her flat but in his name ‘so the other 2 won’t take it from them’

67. At TB 1225:

‘I want to be fair and not favour one in front of the other but he (Piers) is looking after me and doesn’t have a home of his own.’

‘We did help the other 2 and Piers is the only one who has offered to look after me properly and he has never had a home of his own and he should have one. As far as I’m concerned it is his.’ ‘No-one may ever take it away from him’.

Son Piers is power of attorney.

68. On 27 June 2012, the Plaintiff sent an email to GFP and his wife Nancy regarding her 80th birthday (TB 516-17):

Just a quick line to say that I am SO glad Dad is not able to know that you had so little time to remember my 80th Birthday…

[W]e are SO fortunate to have this VERY lovely apartment here with such a marvellous view and SO well maintained and secure! Piers does so very well, looking after all the financial and business ‘stuff’ which Dad used to do. It is still VERY hard to live without him, but I really do appreciate having Piers here. I sincerely hope that my presence does nothing to curtail his enjoyment of life and friends.

69. GFP replied to this email noting that he had made contact with the Plaintiff three times and that he was sorry she did not recall the phone calls (TB 515-17).

70. On 29 June 2012, there was a withdrawal of $11,000.00 from the Plaintiff’s account into an unknown account (Exhibit P13).

71. In July 2012, MFP visited the Plaintiff in Australia (Miles Fisher-Pollard Affidavit [35]).

72. On 8 July 2012, the Plaintiff emailed GFP and Nancy again referring to the Grafton Street Property (TB 518):

The whole building is VERY well looked after and extremely safe!

Not as lovely as Tuross of course but so very much better for me as I am now.

…

Piers looks after me so very efficiently and patiently. He is SO kind and thoughtful and puts up with my forgetfulness VERY well. He is away at the moment and I look forward to him returning soon. I’d better go and see to dinner … or I might get the sack (hopefully!).

73. On 28 December 2012, the Plaintiff emailed GFP and Nancy again (TB 519-20):

Thank you for all your good wishes and I LOVE my new pen and pencil set … I do wish Dad was here to see them. I will put them under my pillow tonight and maybe he will see them there? I miss him so very VERY much and truly wish I could be with him. Piers is an excellent ‘enforcer’ and does not complain, but I sometimes wonder if Dad and I forgot to give him a sense of humour. At least he is not a fussy eater and he sleeps well … and is nearly always out with friends.

74. On 30 December 2012, the Plaintiff emailed Elizabeth Burcar (TB 521-2):

I was NEVER a secretary or typist, therefore SLOWLY I wend my way through the letters and keys hoping to find the correct ones and NOT going to rewrite those incorrect! I hope I finish this before 6pm, as I have to get dinner and then go to my HUGE window … or even on to the little balcony to watch the BIGGEST display of fireworks on and around the harbour. I will be able to see SO many from my window or balcony…

75. On 31 December 2012, the Plaintiff emailed Elizabeth Burcar regarding the Plaintiff’s purchase of the Grafton Street Property (TB 523):

Dear Libby … LOVELY to receive yours … WHAT a surprise and thank you! Currently I am on my own in my gorgeous flat here in Bondi Junction, as Piers is away ‘in the hills’ with a friend who lives a VERY remote life…

…

I bought this gorgeous flat in Bondi Junction, a few kilometres from Bondi Beach … which suits me VERY well, as I do not wish to live close to the ocean.

…

Excellent, as I have little to do here, and no-one to visit so I can relax peacefully while Piers spends all his time away with HIS friends in Bondi and Bondi Beach, as he has lived here for such a long time! One day, in the New Year I will drive to Tuross Head … probably 2 days … and see all my friends there. We talk often on the phone, but it would be lovely to SEE them.

76. In 2013, Jean Calcutt visited the Plaintiff in Bondi Junction (Jean Calcutt Affidavit [40]) and the two travelled together to Perth for 10 days. The Plaintiff got lost at the airport and missed her flight home (Jean Calcutt Affidavit [44]-[46]).

77. On 25 February 2013, the Plaintiff emailed Nancy Pollard (the wife of GFP) regarding her move from Tuross Head to Bondi Junction (TB 524):

Piers is currently in his room, on his bed, where he has been for the last hour or two (it is now 4:32pm), also where he resides so often … I am so VERY tired of paying for his keep, board and lodging to have him going out MOST days with his many friends and leaving me here alone and miserable without John.

…

It would be so much easier if I were still in Tuross Head … (or not even on this earth at all) but my bosses decreed that I should sell there and live here (probably so they didn’t have to spend vast incomes on visiting me there!)

…

Perhaps I should just jump out of my ten-storey window and hope for the best??!!

78. On 12 March 2013, the Plaintiff emailed GFP (TB 525):

Piers looks after me and all the uninteresting formal affairs VERY well, so I have no worries on that account, and I seem to be in perfect health BUT … VERY bored at times!

79. On 15 March 2013, Mr Anstee (then a barrister) made a file note recording text messages with the Defendant, which appeared to record as follows (P10):

2pm – text Piers re his long text complaining to much $1500 ‘I was just covering 4-3hrs work at agreed rate’.

Further text 2-2:10pm. ‘PS I am a lawyer, but not a solicitor. If u need to renegotiate, please contact me’.

2:45-2:55 – Text from Piers. Mum baulked at it. $150 solicitor to witness. If u draft ltr + send to u for forwarding to Dr [indecipherable] rate u can afford.

80. On 16 March 2013, the Plaintiff emailed Jean Calcutt (TB 526-7):

Piers is SO good at seeing to my infrequent requests but is not the happy smiling person I would like. Also I don’t like to ask him to keep me company as the age difference is so great and he has his own friends to see and be with, of which I am very glad and encourage. He does not have a great income as a writer, and is not a big spender, but he does sleep in a lot, and it is good that I can provide him with most of his needs … I should NEVER have left Tuross. I was SO happy there and had the most lovely, soft-hearted, generous and considerate neighbour that ANYONE could wish for.

…

Most certainly I do not enjoy living here anyway. It is easy to see why city / suburban living can be so lonely. I suppose they wanted to ease their consciences and ‘do the right thing’ for Dad.

…

I have a ticket in the lottery and if I win, I would really like us two to go on a lovely cruise somewhere! THAT would be almost heaven! Maybe Piers would be content with just the money!

81. On 18 March 2013, the Plaintiff emailed Faye Roxburgh (TB 528):

Piers looks after me very well here, but I really do miss all my friends in Tuross. Maybe I will not live too much longer, as I also find it SO difficult to be without John.

…

I do wish I had never listened to my three offspring … I would have been MUCH busier, much happier and just as safe in Tuross as here … I bet Piers thinks so too, from HIS point of view.

82. On 18 March 2013, the Plaintiff emailed Faye Roxburgh again (TB 529):

The flat is EXCEPTIONALLY safe and there is NO way anyone can get anywhere near us without us knowing it … more’s the pity. Sometimes I feel like a ‘prisoner’ here.

…

Although a pretty good writer, Piers missed out on the ‘social’ and conversational fairy! Having had one of our flats to himself ever since he lived here in Bondi … with us appearing for VERY short visits occasionally, I feel that he thinks I am intruding on his space. Paying for it is one thing … USING it seems to be quite another!

…

I’m STARVING but as I was going to buy dinner in, tonight, there is nothing to eat! Never mind, I don’t suppose I will starve.

83. On 31 March 2013, the Plaintiff emailed GFP and Nancy (TB 531-4):

This is a really lovely flat, which I try to keep clean and tidy … so indeed does Piers … though for whom, other than Piers’ friends, I can’t imagine. Piers is a very tidy person, so the mess is all mine.

…

It is SO lonely, up here in my castle in the sky.

…

Piers has taken on the responsibility of looking after my ‘affairs’ which he does VERY well, VERY honestly and VERY accurately … I am most grateful for that.

…

Piers is ALWAYS doing something in the flat … vacuum cleaning, kitchen sweeping, bin emptying, balcony hosing and just about anything else one could need … except for cooking (which it is absolutely my pleasure to do) and washing my clothes and dusters / cloths which also I am happy to do myself.

…

The flat is very comfortable and easy to live in and affordable as long as ‘they’ do not put up the rent, although I suppose they have to, sometime. My income is restricted by my bank balance, so I guard it quite closely. Neither of us are big spenders, so it should last fairly well. I do not dare to think what will happen to Piers when I pass over the Rubicon. I will have to make up to him the fact that he has spent so much time looking after my health and affairs.

84. On 1 April 2013, the Plaintiff emailed GFP and Nancy (TB 535):

Piers is VERY good at keeping excellent accounts and seeing that I have everything I need, or making appointments or other ‘secretarial’ duties (which are not very frequent) …

Dad wanted me to live here with Piers (and pay for his food and accommodation … but NOT for his social life). I do not restrict his life at all … beyond keeping my money safe and intact, and my health more-or-less overseen by the local Doctor.

…

[Piers] did find the words to complain about the excess water overflowing from the plants on the balcony (which I had JUST finished watering about 15 seconds before he appeared). MY plants, MY balcony and MY water bill … so apart from the ever-so-slight and quick-drying mess on the balcony, I feel that all would have been better left unsaid. He is NOT my boss … nor does he pay for ANYTHING other than his own entertainment.

…

I have not EVER wallowed in complaints about not having Dad with me any more and feel EXTREMELY tempted to leave him, (Piers), nothing in my will, which would REALLY upset him!

85. On 15 April 2013 the Plaintiff emailed GFP and Nancy, reiterating her sentiments that she should never have left Tuross Heads, stating ‘I pay for everything and go to the shops, taking my shopping cart with me, come back and pack it all away, sit down to a cuppa, then try to last the rest of the day without cutting my own throat!’ (TB 539-40).

86. On 19 April 2013, the Plaintiff emailed GFP and Nancy (TB 541-2):

Honestly, I think I cannot stand it any longer. I may have to SELL this flat and leave him to fend for himself. I shall possible go to Tuross Head and find a small flat there.

…

I fear saying anything as he has the most terrifying temper … so I just go to my room, have a few (or maybe many) tears and leave him to it. I could not afford to let him have the flat, so he will have to find an income AND somewhere else to live.

87. On 24 April 2013, the Plaintiff emailed GFP and Nancy (TB 476): ‘Piers WOULD be happy … as long as I continue to pay for him and the flat!’

88. On 10 May 2013, the Plaintiff signed a statutory declaration prepared by Mr Anstee witnessed by Mr Christie (TB 1151). This declaration included such statements as:

I am of sound mind and body, except for some osteopathic problems relating to both knees and my right hip; although I am still able to run.

…

On 25/11/2011 I transferred my title in the two-bedroom apartment with harbour views at 1202/81 Grafton St Bondi Junction, NSW, 2022 to my third son Piers Hugh Penwith Fisher-Pollard … he received unencumbered free-hold title over the said property.

…

The gift of the Bondi Junction apartment reflects my heartfelt, total and true desire. It was and is my own decision made of my own accord. It is Piers’ home whereas my other sons have their own independent homes elsewhere.

No threat, promise or inducement was held out to me to make this statutory declaration. I have not been coerced by anybody or anything and make this sworn statement of my own free will and volition.

89. In his file note for this matter, there is a record of Dr Hameiri dated 29 April 2013, which notes: ‘[t]his is to verify that Mrs Gillian Fisher-Pollard suffers from depression due to bereavement. As well she suffers from mild cognitive impairment consistent with her age but shows no evidence of Alzheimer’s disease or dementia’ (TB 1152-3).

90. From 15 July 2013 to 21 July 2013, the Plaintiff then stayed with Jean Calcutt at Tuross Head (Jean Calcutt Affidavit [47]; Faye Roxburgh Affidavit [35]-[36]). Jean Calcutt and the Plaintiff then went on a cruise together (Jean Calcutt Affidavit [49]).

91. On 24 October 2013, the Defendant published a book largely of photographs entitled Dog Tails (Exhibit P2).

92. On 20 February 2014, the Plaintiff emailed Peter Lester regarding her anticipated move from Sydney to Byron Bay (TB 543-5):

Hello from the above … Piers (and I) … deliberately in brackets … are seriously considering leaving Sydney and going to the mid north coast of Australia … to Byron Bay … after we have enjoyed a much anticipated lovely cruise around the South Pacific at the end of March!

…

I just hope Piers never thinks of dumping me in a ‘home’ as I would really HATE that, having been a ‘free spirit’ all my life with John and with him allowing it. I shall disinherit him if he does but I’m reasonably confident he won’t … My attention span is minimal, and I can’t think of much to say anyway, except remember me to EVERYONE, please.

93. On 25 February 2014, Sarah Booker (of Richardson & Wrench Bondi Junction) emailed the Plaintiff and the Defendant regarding sale of the Grafton Street Property (TB 546-8). The Plaintiff replied: ‘Dear Sarah … I would be VERY grateful if you would please address ALL CORRESPONDENCE regarding this property to me and I will forward Piers whatever I feel is necessary’.

94. On 2 March 2014, the Plaintiff emailed Jean Calcutt (TB 549-51):

Yesterday afternoon we took the car and he drove me around the beaches … that was MOST enjoyable. We sat down on the hill above one of them and just looked at the scenery … Watson’s Bay … That was lovely and so kind of him. He really does try to do joyful (!) things for me … I am SO lucky.

95. On 5 March 2014, GFP advised MFP that the Plaintiff was planning on moving to Tyagarah. He expressed the concern for the potential that she would have few friends in the area (TB 927-8).

96. On 23 March 2014, the Plaintiff emailed Jean Calcutt:

Most of the people in this building are either moribund or brain dead, I think. I have never met MOST of them and the FEW whom I have seen, suddenly scurry away … as though being scared of being seen or spoken to! Piers is VERY good and caring and I am so glad he is here with me. I do not interfere with his life, nor he with mine, and we just help each other when needed! … Piers really wants to live there and as I cannot persuade him to live in Tuross Head, much as I would enjoy it, just about anywhere would be more enjoyable than Sydney City!

97. On 1 April 2014, L J Hooker provided Mr Mawer with sale advice for the Tyagarah Property at 31 Prestons Lane (Tyagarah Property), with a contract price of $1,075,000.00 and the Defendant listed as the purchaser (TB 1109). On 23 April 2014, the Plaintiff paid from her account an amount of $53,750.00 as 5% deposit of the purchase price of the Tyagarah Property. Exchange of contracts was achieved on 30 April 2014 for purchase of the property, with the Defendant listed as the sole purchaser (TB 935; 947).

98. On 29 May 2014, the Plaintiff paid $550.00 to Mr Mawer (TB 1370-82). She again paid Mr Mawer $895.00 on 2 July 2014 and $1,336.00 on 4 July 2014 (TB 1370-82).

99. In July 2014, MFP visited his mother at Tyagarah (Miles Fisher-Pollard Affidavit [38]-[40]).

100. On 3 July 2014, sale of the Grafton Street Property was settled with a sale price of $1,260,000.00. The amount ultimately received on settlement for the sale was $1,197,806.86, with $1,976,626.46 deposited into the Defendant’s account (TB 942, 1482).

101. On 8 July 2014, purchase of the Tyagarah Property was settled with a purchase price of $1,075,000 and the Defendant listed as the sole purchaser (TB 935, 976).

102. On 2 November 2014, MFP carried out a title search on the Tyagarah Property, ascertaining that the property was purchased in the Defendant’s name (TB 976-9). He then wrote to his brother GFP:

I mentioned ownership of the house to Mum several times before today (not knowing then who the registered owner was), and she stated each time that she ‘thought’ it was in her name, and that there was no reason for it to be in Piers’ name. She said that the Bondi Junction apartment had been purchased in Piers’ name solely to benefit from the First Home Owners’ Grant that had been in place at the time.

Given comments Mum has made – she has no idea how much money she has, or even whether she has any money at all, and knows nothing about the arrangement with Jim Noble (and nor do I) – I am now fairly certain that Piers has full control of Mum’s finances and I have little confidence that he is handling them exclusively for Mum’s benefit.

103. On 28 November 2014, the Plaintiff signed a living testament (TB 980-3):

I was not in control of my thoughts and life when my husband died and I was unaware that my properties at Tuross Head and at Queens Park were sold and my former home at Bondi Junction was purchased not in my name. The proceeds from the sale of my Bondi Junction home were used to purchase my current home at … Tyagarah which also was purchased not in my name. I need my Tyagarah house to be owned in my name.

104. In this living testament, the Plaintiff stated it was her intention to have the properties remain hers until her death, and eventually be divided equally between her three sons upon her death.

105. On 10 January 2015, the Defendant emailed MFP and GFP (Exhibit P7):

As far as frantic calls to Mum about her decision (which was unknown to me until we were at the conveyancer’s office for the original property at Grafton Street) to gift the property to me – Mum made me swear not to tell either of you … And it was a ‘secret’ that I didn’t carry lightly.

…

Guy, if you’ve notice I haven’t bothered talking to you for a while, it’s because when you and Miles ring Mum with demands she change the property out of my name, she likes to put it on speakerphone for me to listen. She thinks it’s amusing.

…

Finally, though Mum feels it’s none of your business, she’s said she’ll write to you regarding her wishes for the house. Mum is fully aware it’s in my name, it’s what she wants, and she didn’t want to get into a slinging match with either of you about it (and still doesn’t), and so prevaricates, obfuscates, claims ‘no knowledge’ of it when pressured by you: ‘Piers does all the finances. I know nothing about it’.

106. On 23 January 2015, the Defendant was charged with common assault and commit an act of cruelty upon an animal. He was placed on an 18 month good behaviour bond (TB 1169).

107. On 4 February 2015, the Defendant received $15,000.00 from the Plaintiff upon closure of her term deposit account (Exhibit P13).

108. At Easter of 2015, the Plaintiff visited GFP and his family in Canada, where she stayed due to concerns that she was in poor physical condition and was uncared for (Miles Fisher-Pollard Affidavit [46]).

109. On 28 June 2015, the Defendant was charged with driving with mid-range PCA, where he was ordered to take part in an alcohol interlock program for 20 months and disqualified from driving (TB 1168).

110. On 7 July 2015, the Defendant emailed Kerry Powell regarding Nancy Pollard’s access to the Plaintiff’s bank accounts (Exhibit P6):

I’ve told Nancy this is illegal, as now she’s accessing Mum’s online banking – even I’m not allowed to do that with POA. I asked Mum if that’s what she wanted (i.e. only Guy and Nancy controlling her money, as she doesn’t use online banking herself), and she said definitely no. I have access to Mum’s banking (which is linked to mine to make it legal for me to use it) so I can pay her bills, private health cover, do her tax, and check that her payments come in (one payer is a bit irregular and often I have to chase him up).

111. On 4 September 2015, the Plaintiff wrote a letter setting out her wishes (TB 1009-10):

I arrived in Canada April 1 2015 for a visit with my son Guy and his family. I have decided to live in Canada as my son Piers can no longer take care of me.

To live my normal life I need the financial resources which I had in Australia invested in my home for which I paid and we requested to put in his name. I was not aware of the cost of the home nor was I aware of the implications or consequences of having his name on the title.

Now that I am living in Canada, I need these resources to spend as I wish and to spend my life as I choose, also on accommodation, travel and on daily living.

112. On 23 October 2015, the Defendant emailed MFP (Exhibit P3):

[Y]ou know what you and Guy did; it was deceitful and taking advantage of Mum’s diminished capacity to comprehend the situation … Anyway, Mum used to be excellent on the computer and with other things (Foxtel, TV, driving), but in the last year or so she was with me she was starting to lose or had lost even the most basic abilities. This is when you and Guy decided to tag team her with phone calls about how I sold her houses (????) – I never sold a single property of Mum’s, everything that was sold was her decision (the house at Tuross Head which she didn’t want any more, with the memories of Dad in it, and the apartment at York Rd, which Mum wanted to sell in order to purchase one with a better view, and which as you and Guy know she decided to put in my name.

…

As far as the sale of the Mum’s properties, Mum decided that’s what she wanted, Mum signed all the paperwork at the bank, real estate and conveyance; I had nothing to do with any of those sales.

113. On 26 October 2015, the Defendant was charged with using offensive language in or near a public place or school and was fined (TB 1171).

114. On 18 December 2015, the Plaintiff lodged a caveat (Caveat AK78469) over the Tyagarah Property. On 15 September 2016, a section 74N notice pursuant to the Real Property Act 1900 (NSW) was served on Schweizer Kobras by Heydons Lawyers. On 20 September 2016, the Plaintiff swore an affidavit (TB 60-5).

115. On 28 December 2015, the Plaintiff appointed severally MFP and GFP under an enduring power of attorney (TB 1011-15).

Legal principles

Unconscionable conduct

116. In Blomley v Ryan (1956) 99 CLR 362 at 428-9; [1956] HCA 81, Kitto J observed (citations omitted):

The essence of the ground we have to consider is unconscientiousness on the part of the party seeking to enforce the contract; and unconscientiousness is not made out in this case unless it appears, first, that at the time of entering into the contract the defendant was in such a debilitated condition that there was not what Sir John Stuart called “… a reasonable degree of equality between the contracting parties”; Longmate v Ledger, and secondly, that the defendant's condition was sufficiently evident to those who were acting for the plaintiff at the time to make it prima facie unfair for them to take his assent to the sale. If these two propositions of fact were established the burden of proving that the transaction was nevertheless fair would lie upon the plaintiff …

117. At 429, His Honour also said (citations omitted):

If the burden were not discharged the defendant would be entitled to hold the judgment appealed from, since in that event it would be right to draw the conclusion that, as was said in Evans v Llewellin, “… though there was no actual fraud, it is something like fraud, for an undue advantage was taken of his situation”. The fact that the defendant's condition was the result of his own self-indulgence could make no difference, for, as is shown by Cooke v Clayworth, the principle applied is not one which extends sympathetic benevolence to a victim of undeserved misfortune; it is one which denies to those who act unconscientiously the fruits of their wrongdoing.

118. In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 474-5; [1983] HCA 14 (Amadio), Deane J (with Wilson J agreeing) said (citations omitted):

The jurisdiction of courts of equity to relieve against unconscionable dealing developed from the jurisdiction which the Court of Chancery assumed, at a very early period, to set aside transactions in which expectant heirs had dealt with their expectations without being adequately protected against the pressure put upon them by their poverty (see O'Rorke v Bolingbroke). The jurisdiction is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or “unconscientious” that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable: “the burthen of shewing the fairness of the transaction is thrown on the person who seeks to obtain the benefit of the contract” (see per Lord Hatherley, O'Rorke v Bolingbroke; Fry v Lane; Blomley v Ryan).

The equitable principles relating to relief against unconscionable dealing and the principles relating to undue influence are closely related. The two doctrines are, however, distinct. Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party (see Union Bank of Australia Ltd v Whitelaw; Watkins v Combes; Morrison v Coast Finance Ltd). Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogued. In Blomley v Ryan, Fullagar J listed some examples of such disability: “poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary”. As Fullagar J remarked, the common characteristic of such adverse circumstances “seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other”.

119. The distinction between unconscionable conduct and undue influence reinforced by Deane J in Amadio was also affirmed by Brennan J in Louth v Diprose (1992) 175 CLR 621 at 626-7; [1992] HCA 61 (Louth v Diprose) (citations omitted):

The jurisdiction of equity to set aside gifts procured by unconscionable conduct ordinarily arises from the concatenation of three factors: a relationship between the parties which, to the knowledge of the donee, places the donor at a special disadvantage vis-à-vis the donee; the donee's unconscientious exploitation of the donor's disadvantage; and the consequent overbearing of the will of the donor whereby the donor is unable to make a worthwhile judgment as to what is in his or her best interest. A similar jurisdiction exists to set aside gifts procured by undue influence. In Commercial Bank of Australia Ltd v Amadio, Mason J distinguished unconscionable conduct from undue influence in these terms:

“In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.”

Deane J identified the difference in the nature of the two jurisdictions:

“Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party … Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.”

Although the two jurisdictions are distinct, they both depend upon the effect of influence (presumed or actual) improperly brought to bear by one party to a relationship on the mind of the other whereby the other disposes of his property.

120. In Louth v Diprose, Brennan J also examined the question of finding unconscionable conduct within the context of the giving of a gift from a donor to a donee, at 630-1 (citations omitted):

Equity intervenes “whenever one party to a transaction is at a special disadvantage in dealing with the other party ... and the other party unconscientiously takes advantage of the opportunity thus placed in his hands”. Citing this passage in Amadio, Dawson J said:

“What is necessary for the application of the principle is exploitation by one party of another's position of disadvantage in such a manner that the former could not in good conscience retain the benefit of the bargain.”

What his Honour said of a bargain can be said equally of a gift.

…

When a donor who stands in a relationship of special disadvantage vis-à-vis a donee makes a substantial gift to the donee, slight evidence may be sufficient to show that the gift has been procured by unconscionable conduct. Whether that finding should be made depends on the circumstances. In Watkins v Combes, Isaacs J said:

“It is not the law, as I understand it, that the mere fact that one party to a transaction who is of full age and apparent competency reposed confidence in, or was subject to the influence of, the other party is sufficient to cast upon the latter the onus of demonstrating the validity of the transaction. Observations which go to that extent are too broad.”

But where it is proved that a donor stood in a specially disadvantageous relationship with a donee, that the donee exploited the disadvantage and that the donor thereafter made a substantial gift to the donee, an inference may, and often should, be drawn that the exploitation was the effective cause of the gift. The drawing of that inference, however, depends on the whole of the circumstances.

121. In McCulloch v Fern [2001] NSWSC 406, Palmer J observed at [69]:

[69] The circumstances by which a party may be placed at a special disadvantage in the ability to conserve his or her own interest are as infinitely various as human relationships: Commercial Bank of Australia Ltd v Amadio (supra) at 461, 474; Garcia v National Australia Bank Ltd (1998) 72 ALJR 1243, at 1249. What is necessary for the intervention of equity is exploitation by one party of another’s position of special disadvantage in such a manner that the former cannot, in good conscience, retain the benefit of the bargain: Commercial Bank of Australia Ltd v Amadio (supra) at 489. The doctrine applies just as much to a gift as to a commercial transaction: Louth v Diprose (supra) at 630.

122. The New South Wales Court of Appeal in Australia and New Zealand Banking Group Limited v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 has observed at paragraphs [45]-[46]:

[45] In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, Mason J identified a significant distinction between a claim that a transaction should not be enforced because it has been induced by “undue influence” and one which should not be enforced because of “unconscionable conduct”. His Honour stated (at 461) after reference to a number of bases upon which equity might decline to enforce a transaction:

“But relief on the ground on ‘unconscionable conduct’ is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage … Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.”

[46] As was noted in the joint judgment of Gaudron, Gummow and Kirby JJ in Bridgewater v Leahy (1998) 194 CLR 457 at [73] despite the overlap between these concepts, there is danger in failing to attend to the “conceptual and practical distinctions between them”. But it may be noted that the matters which must be considered under each will fall into three broad categories, namely:

(a) those affecting the status, characteristics or situation of the party seeking to resist enforcement of the document or transaction;

(b) factors relating to the position of the enforcing party, and

(c) the conduct of the one with respect to the other.

123. See also the judgment of Latham CJ in Johnson v Buttress (1936) 56 CLR 113 at 120; [1936] HCA 41, noting that evidence of independent legal advice as ‘one means, and the most obvious means, of helping to establish that the gift was the result of the free exercise of independent will; and the absence of such advice, even if not sufficient in itself to invalidate the transaction, would plainly be a most important factor in determining whether the gift was in fact the result of a free and genuine exercise of the will of the donor’.

124. In Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49, Kiefel CJ, Bell, Gageler, Keane and Edelman JJ observed at [37]-[40] (citations omitted):

[37] There was no controversy on this appeal concerning the principles of unconscionable conduct in equity. Those principles were recently restated by this Court in Kakavas v Crown Melbourne Ltd.

[38] A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage “which seriously affects the ability of the innocent party to make a judgment as to [the innocent party's] own best interests”. The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring “victimisation”, “unconscientious conduct”, or “exploitation”. Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.

[39] In Commercial Bank of Australia Ltd v Amadio, Deane J said that the equitable principles concerning relief against unconscionable conduct are closely related to those concerned with undue influence. The same circumstances can result in the conclusion that the person seeking relief (i) has been subject to undue influence, and (ii) is in a position of special disadvantage for the purposes of the doctrine concerned with unconscionable conduct. For instance, in Diprose v Louth (No 1), the trial judge, King CJ, observed that both doctrines were satisfied where the defendant "was in a position of emotional dominance which gave her an influence over the [plaintiff] which she exercised unconscientiously to procure the gift of the house". Before the High Court in that case, Mr Diprose relied only upon the ground of unconscionable conduct.

[40] Although undue influence and unconscionable conduct will overlap, they have distinct spheres of operation. One difference is that although one way in which the element of special disadvantage for a finding of unconscionable conduct can be established is by a finding of undue influence, there are many other circumstances that can amount to a special disadvantage which would not establish undue influence. A further difference between the doctrines is that although undue influence cases will often arise from the assertion of pressure by the other party which might amount to victimisation or exploitation, this is not always required. In Commercial Bank of Australia Ltd v Amadio, Mason J emphasised the difference between unconscionable conduct and undue influence as follows:

In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.

Undue influence

125. With respect to the distinct but related doctrine of undue influence again Kiefel CJ, Bell, Gageler, Keane and Edelman JJ observed in Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49 at [30]-[34] (citations omitted):

[30] In Allcard v Skinner, Lindley LJ said that “no Court has ever attempted to define undue influence”. One reason for the difficulty of defining undue influence is that the label “undue influence” has been used to mean different things. It has been used to include abuse of confidence, misrepresentation, and the pressure which amounts to common law duress. Each of those concepts is better seen as distinct. Nevertheless, the boundaries, particularly between undue influence and duress, are blurred. One reason why there is no clear distinction is that undue influence can arise from widely different sources, one of which is excessive pressure. Importantly, however, since pressure is only one of the many sources for the influence that one person can have over another, it is not necessary that the pressure which contributes to a conclusion of undue influence be characterised as illegitimate or improper.

[31] In 1836, in a passage which was copied verbatim by Snell thirty years later, Story said that a person can be subjected to undue influence where the effect of factors such as pressure is that the person “has no free will, but stands in vinculis [in chains]”. He explained that “the constant rule in Equity is, that, where a party is not a free agent, and is not equal to protecting himself, the Court will protect him”. In 1866, this approach was applied in equity by the House of Lords, recognising undue influence in a case of pressure that deprived the plaintiff of “free agency”. In 1868, in probate, Sir James Wilde also described undue influence as arising where a person is not a “free agent”. In Johnson v Buttress, Dixon J described how undue influence could arise from the “deliberate contrivance” of another (which naturally includes pressure) giving rise to such influence over the mind of the other that the act of the other is not a “free act”. And, in Bank of New South Wales v Rogers, McTiernan J characterised the absence of undue influence as a “free and well-understood act” and Williams J referred to “the free exercise of the respondent's will”.

[32] The question whether a person's act is “free” requires consideration of the extent to which the person was constrained in assessing alternatives and deciding between them. Pressure can deprive a person of free choice in this sense where it causes the person substantially to subordinate his or her will to that of the other party. It is not necessary for a conclusion that a person's free will has been substantially subordinated to find that the party seeking relief was reduced entirely to an automaton or that the person became a “mere channel through which the will of the defendant operated”. Questions of degree are involved. But, at the very least, the judgmental capacity of the party seeking relief must be “markedly sub-standard” as a result of the effect upon the person's mind of the will of another.

[33] An example which illustrates the characterisation by a court of a lack of free will sufficient to amount to undue influence is the decision of this Court in Johnson v Buttress. In that case, Mr Buttress was a 67 year old man, who was “wholly illiterate, not very intelligent, and of little or no experience or capacity in business”. He made a voluntary transfer of land to a relative of his wife. The land was his only property and his only means of livelihood. When he made the transfer he did not understand that he had parted with the land irrevocably. After Mr Buttress died, the administrator of his estate brought an application to set aside the transfer. The trial judge set aside the transfer on the basis of undue influence. This decision was upheld in this Court. Although other members of the Court relied upon a presumption of undue influence, which is considered below, one member of the Court, Starke J, concluded that it was open to the trial judge to find that undue influence arose without any presumption. His Honour upheld the conclusion of the trial judge that the circumstances of the transfer invited the inference that it was “not the result of the free and deliberate judgment of the deceased”.

[34] There are different ways to prove the existence of undue influence. One method of proof is by direct evidence of the circumstances of the particular transaction. That was the approach relied upon by the primary judge in this case. Another way in which undue influence can be proved is by presumption. This presumption was relied upon by Ms Thorne in this Court as an alternative. A presumption, in the sense used here, arises where common experience is that the existence of one fact means that another fact also exists. Common experience gives rise to a presumption that a transaction was not the exercise of a person's free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a “substantial benefit” to another, which cannot be explained by “ordinary motives”, or “is not readily explicable by the relationship of the parties”. Although the classes are not closed, in Johnson v Buttress Latham CJ described the relationships that could give rise to the presumption as including parent and child, guardian and ward, trustee and beneficiary, solicitor and client, physician and patient, and cases of religious influence. Outside recognised categories, the presumption can also be raised by proof that the history of the particular relationship involved one party occupying a similar position of ascendency or influence, and the other a corresponding position of dependency or trust. In either case, the presumption is rebuttable by the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party's free will.

Capacity

126. Although this is not a case dealing with testamentary capacity, Carr v Homersham [2018] NSWCA 65 provides a useful summary and analysis of the important considerations to bear in mind when assessing the state of mind of individuals in similar positions to that of the Plaintiff. Providing a summary of the standard formulation of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565, Basten JA observed at [5]-[6] (citations omitted):

[5] Testamentary capacity is not a statutory concept but is derived from the case-law, from which the primary judge fairly took as his starting point the decision of Cockburn CJ in Banks v Goodfellow. The concept is sometimes divided into component parts, with affirmative and negative elements. The primary judge accepted that there were three affirmative elements, namely:

(a)    the capacity to understand the nature of the act of making a will and its effects;

(b)   understanding the extent of the property the subject of the will, and

(c)   the capacity to comprehend moral claims of potential beneficiaries.

[6] The negative elements, commonly identified in archaic language, do no more than identify the conditions which might be understood to interfere with full testamentary capacity. They include “disorders of the mind” and “insane delusions”. Too much attention should not be paid to the precise language of the negative elements; importantly, although they tend to be expressed in general terms, they are only relevant to the extent that they are shown to interfere with the testator’s normal capacity for decision-making.

127. With respect to the third affirmative element outlined by Basten JA, namely the capacity to comprehend moral claims of potential beneficiaries, His Honour said at [9] and [12] (citations omitted):

[9] The third affirmative element may properly be understood as involving capacity. As noted by the primary judge, Powell J in Re the Estate of Hodges described this element by reference to a passage in the opinion of Erskine J in Harwood v Baker, dealing with a testator who had left all his property to his wife and excluded all other relations from any share of it. Erskine J said the issue was “whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property”.

…

[12] In the language of Harwood v Baker, the question is not whether these choices were improper or unjust, but whether they (together with other evidence) demonstrated a lack of capacity to recognise moral claims and, if more than one, weigh them and choose between them.

128. Macfarlan and Leeming JJA agreed with the outcome of allowing the appeal decided by Basten JA in Carr v Homersham [2018] NSWCA 65. Tangentially, it should be noted Leeming JA noted the difficulty of using the somewhat historical language of ‘insane delusion’ at [133]-[134] of this case. See also Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13.

Parties’ submissions

Preliminary observations

129. Although an Outline of Submissions was provided by both Plaintiff and Defendant prior to hearing, these respective submissions did not have the benefit of an analysis of the entirety of the evidence raised during the hearing of this matter. As such, I am persuaded that the Final Submissions and the Supplementary Submissions provided by both parties better summarise their respective arguments.

130. The Plaintiff’s case is relatively clear, in that it seeks to set aside the property transactions that resulted in property being registered in the Defendant’s name as unconscientious, imprudent and contrary to the Plaintiff’s interests. During hearing, the Plaintiff made fair concessions including withdrawing [28]-[38] of the Points of Claim (T5/26-32; T577/46-7).

131. The Defendant’s case is more difficult to formulate. The Outline of Submissions for the Defendant was a bland document comprising predominantly denials and non-omissions, including criticisms of MFP and GFP and the appointment or maintenance of the Tutor. The Defendant did not issue a cross-claim. In the course of argument, I attempted to understand precisely the Defendant’s case with limited success (T626/18-T630/21). At the conclusion of the hearing, I am not entirely clear of the ambit of the defence or its precise argument, although I am capable of summarising the various submissions made by the Defendant.

Plaintiff

132. The Plaintiff submits the only issue before the Court is whether or not the transactions involving the transfer of the Plaintiff’s real estate assets are valid or are capable of being set aside (Final Submissions [1]).

133. The Plaintiff submits that at the time of entering into the transactions, she suffered from dementia and other forms of cognitive impairment (Outline of Submissions [3]; Final Submissions [3]). The Plaintiff submits the Defendant has not served any expert evidence contesting these matters and they were not the subject of any challenge in cross-examination (Final Submissions [3]).

134. The Plaintiff refers to evidence of cognitive impairment including the expert evidence of Dr Nadeem Bhanji, the evidence of Dr Mulholland and Dr Humphrys, and other direct and lay evidence to submit she was suffering from cognitive decline from as early as 2005. The Plaintiff submits this vitiated her capacity to divest herself of her major assets (Outline of Submissions [25]-[32]; Final Submissions [10]-[19]; [50]-[65]).

135. The Plaintiff also submits the Defendant took over the finances of the Plaintiff following her husband’s death, causing the Plaintiff to undertake a series of complex property transactions (Final Submissions [20]-[21]). The Plaintiff challenges the notion that John Fisher-Pollard gave deathbed instructions that the York Road Property be gifted to the Defendant, and emphasises the Plaintiff’s lack of knowledge of the family’s finances (Final Submissions [16]-[19]). The Plaintiff also challenges the involvement of Mr Mawer in failing to request the Plaintiff obtain independent legal advice, and asserts Mr Mawer’s recollection should be rejected as being at odds with contemporaneous materials and reality (Final Submissions [22]-[27]).

136. The Plaintiff submits the Defendant is not the beneficial owner of the Tyagarah Property, and that the property is held on constructive trust for her (Final Submissions [4]). The Plaintiff also submits it is clear she was either unaware or confused about the nature of the relevant property transactions, and that they were kept secret by the Defendant (Final Submissions [28]-[32]).

137. The Plaintiff challenges in large part the evidence of Mr Anstee as any evidence of her intention to gift the Grafton Street Property or state of mind. The Plaintiff also rejects the statutory declaration prepared by Mr Anstee as prepared in circumstances where she had no real appreciation of its significance nor did it reflect her wishes (Final Submissions [33]-[44]).

138. The Plaintiff claims that the impugned transactions were unconscientious such that they ought to be set aside as between Mrs Fisher-Pollard and the Defendant (Outline of Submissions [33]; Final Submissions [65]). This is based upon the Plaintiff’s submissions as to the cognitive deficits of Mrs Fisher-Pollard, and the submission that the Defendant was aware of these cognitive deficits, took advantage of these deficits and her reliance on him as her caregiver (Outline of Submissions [36]; Final Submissions [65]-[68]).

139. The Plaintiff submits that having established the two limbs outlined in Amadio, the onus is on the Defendant to show that the transactions were fair, just and reasonable (Outline of Submissions [37]; Final Submissions [69]). The Plaintiff submits this could never be established.

140. In the alternative, the Plaintiff submits that the impugned transactions were highly improvident and procured by the Defendant as a result of undue influence, and hence should be set aside. This relates to the Plaintiff’s submission that the relationship between her and the Defendant was one of trust and confidence in the Defendant, raising a presumption of undue influence in and about the transactions (Outline of Submissions [38]; Final Submissions [70]).

141. The Plaintiff claims she is entitled to relief resulting in the transfer of title in the property from the Defendant to her, and associated consequential relief as specified in the Amended Summons (Final Submissions [71]).

142. In argument, the Plaintiff no longer pressed paragraphs [28]-[38] of the Points of Claim relating to additional transactions, artworks and collectibles (T5/26-32; T577/46-7).

Defendant

143. The Defendant submits that the conduct of the Tutor (MFP) in this case has deprived the Plaintiff of a real chance to be heard (Outline of Submissions [3]). The Defendant also criticises the power of attorney allegedly granted to GFP and MFP (Outline of Submissions [5]-[7]).

144. The Defendant submits that he was appointed with enduring Power of Attorney on 23 August 2011 (Outline of Submissions [12]) and makes criticism of the notice of revocation of Power of Attorney of 12 August 2016 (Outline of Submissions [12]-[16]). He also submits that the characterisation of Mrs Fisher-Pollard as an especially vulnerable person and the characterisation of the transactions generally by the Plaintiff’s counsel is incorrect, submitting instead that the Defendant did not initiate any of the property transactions for his own benefit or through dishonesty (Final Submissions [7]-[16]).

145. The Defendant makes general criticism of the lawyer Mr Ian Schofield in Canada (Outline of Submissions [17]). The Defendant also emphasises the legitimacy of the relevant transactions, including in relation to the evidence provided by Mr Mawer, Mr Anstee and Mr Christie (Final Submissions [17]-[31]).

146. The Defendant submits Mr Mawer did not breach regulatory obligations, referring to The State of New South Wales v Citco Industries Pty Ltd (2001) 53 NSWLR 451; [2001] NSWCA 406 and the regulatory framework for conveyancing work (Defendant’s Supplementary Submission [1]-[7]).

147. The Defendant submits there is no basis for the Plaintiff to invoke undue influence principles, and also that Mrs Fisher-Pollard recognised the Defendant’s situation in life and made the relevant transactions voluntarily and intentionally (Outline of Submissions [18]-[29]).

148. The Defendant submits he took no advantage of his position in assisting the Plaintiff (Final Submissions [32]). Rather, he submits the relevant transactions and the placement of property in the Defendant’s name reflected the wishes of the Plaintiff to gift him, as well as provide for him as some form of protection against undue claims by his siblings (Final Submissions [32]-[33]).

149. The Defendant also seeks to claim a clearer position from the Plaintiff as to whether or not she had capacity to make a will that operated in favour of her three sons equally (Outline of Submissions [29]). In particular, the Defendant submits that any later will entered into by the Plaintiff whilst in Canada supports her mental capacity (Final Submissions [73]-[84]).

150. The Defendant makes criticism of the Plaintiff’s characterisation of the contemporaneous emails provided to the Court (Final Submissions [34]-[69]) and perceived personal criticisms levelled against him of dishonesty (Final Submissions [70]-[72]).

151. The Defendant also makes general criticisms of the evidence of Dr Bhanji as based largely on speculation, based on limited material and based on unfair instructions (Outline of Submissions [30]-[31]; Final Submissions [132]-[133]).

152. The Defendant makes somewhat generalised submissions on the contextual circumstances surrounding the purchase of the Tyagarah Property (Final Submissions [85]-[117]), as well as criticisms generally on the conduct of the Plaintiff in lodging a caveat over the Tyagarah Property and revoking his power of attorney (Final Submissions [119]-[121]).

153. Referring to Al Maha Pty Ltd v Coplin [2017] NSWCA 318, the Defendant submits the principles established in Amadio do not apply to the circumstances of this case, denying the existence of a special disability (Final Submissions [122]-[127]).

154. The Defendant denies the evidence proffered by the Plaintiff establishes any capacity issue, stating that ‘the material is well short of a capacity issue’ (Final Submissions [129]-[133]).

155. The Defendant also makes an oblique criticism of the Tutor, including delay in bringing proceedings (Final Submissions [128]), making the following submission (Outline of Submissions [33]):

Even so, the defendant recognises that despite a case for removal of the Tutor and the position that more funds ought to be available to the plaintiff, he does not wish to take any chances on the welfare of the plaintiff and as a result has, through solicitors, made clear an open position he will support a sum of money being raised against the property for her benefit and welfare to be managed by an appropriate trustee and in default of an agreement as to a trustee, then the Trustee and Guardian.

156. In argument, the Defendant made general submissions regarding the possible unsuitability of the Tutor. However, the Defendant did not make an active application for the removal of the Tutor (T164/31-T167/36).

157. The Defendant also submits generally the accounts of the Plaintiff remain unclear on the evidence (Defendant’s Supplementary Submission [8]-[13]).

Tracing of surplus proceeds of sale

158. Both parties also provided useful supplementary submissions further elucidating the flow of property transactions and surplus proceeds of sale of the Tuross Head Property and York Road Property (Plaintiff’s Financial Timeline of Property Transactions; Defendant’s Financial Timeline of Property Transactions):

1. The York Road Property was sold for $681,000.00 (TB 815);

2. The Tuross Head Property was sold for $635,000.00 (TB 820);

3. The Grafton Street Property was purchased for $930,000.00 (TB 743) and later sold for $1,260,000.00; and

4. The Tyagarah Property was purchased for $1,075,000.00 (TB 935).

159. This means that the surplus of the York Road Property and Tuross Head Property, which was not spent on the purchase of the Grafton Street Property and associated transactions fees, initially amounted to $315,000.00 (Plaintiff’s Supplementary Submissions [11]).

160. This $315,000.00 surplus (less a minor withdrawal unexplained of $11,000.00) was paid into the accounts of the Plaintiff including a term deposit, and was apparently used for various withdrawals the bulk of which appear to have been related to the later purchase of the Tyagarah Property (Plaintiff’s Supplementary Submissions [11]).

161. The $315,000.00 surplus account was closed in July 2015, with $15,000.00 being transferred to the Defendant and the remaining balance of $306,230.90 transferred to the Plaintiff’s savings account and then her Canadian bank account (Exhibit P13).

162. The additional proceeds from the sale of the Grafton Street Property and purchase of the Tyagarah Property were paid into the Defendant’s account and used principally in renovating and furnishing the Tyagarah Property and purchasing a motor vehicle (TB 115-23, 129).

491. Dr Mulholland on the other hand was neither asked nor was there any attempt to qualify her so that she could express an opinion about the Plaintiff’s capacity in 2011. In my view when she made her assessment in 2012 it was somewhat rushed however in fairness to her she detected sufficient cognitive deficit to warrant further investigation.

492. She did not impress me anywhere near as much as Dr Bhanji. There are a number of reasons for that.

493. First in my view she is not as experienced as he is. Secondly while she did see the Plaintiff relevantly in 2012 as I have said she was not asked to make any findings about the Plaintiff’s state of mind in 2011. She also impressed me when she gave her evidence as being too overly concerned with diminishing the significance of some of the events she was asked to make assumptions about and was from time to time more than mildly defensive in her responses.

494. Her clinical notes made during her assessment in June 2012 (not May as she thought in her affidavit) are instructive. The record (TB 361) that the Plaintiff told Dr Mulholland that she wanted a letter for her solicitor so that she could alter her will to leave her current flat to her youngest son. Clearly Dr Mulholland did not appreciate at the time, no doubt because she was not told that in the October of the year before the Plaintiff had made a will leaving her estate equally to her three sons and that during the latter part of 2011 had effectively acquiesced in a series of transactions leading to her “current flat” being in fact in the name of the Defendant (her youngest son).

495. However further during the consultation Dr Mulholland’s notes record (TB 366) that the Plaintiff told Dr Mulholland that she was living with her son and that she wanted to change her will so that the flat she was living in was left to her youngest son. This was because her other two sons already had their own properties and families and that she already helped the older two buy property. She told Dr Mulholland she was changing her will freely as it is her flat but in his name so that the other two would not take it from him. However further during the consultation Dr Mulholland recorded that the Plaintiff indicated that she wanted to be fair (TB 367) and not favour one over the other but that the Defendant was looking after her and did not have a home of his own.

496. Again she reiterated that “we” presumably meaning the Plaintiff and her husband, had helped the other two and that the Defendant had offered to look after her properly. Dr Mulholland again simply recorded this fact and no more.

497. Dr Mulholland’s notes certainly record that the Plaintiff appreciated that the flat was in the Defendant’s name but failed to appreciate that altering her will was unnecessary given the fact that during her lifetime she had already apparently gifted the Grafton Street property to the Defendant. Her confusion was not something Dr Mulholland appreciated or picked up.

498. It seems to me however that leaving to one side the lay evidence to which I shall necessarily return shortly, the medical opinion expressed by Dr Bhanji in my view is soundly based and I accept it. Leaving aside the confusion displayed by the Plaintiff during her consultation with Dr Mulholland, the events of the previous year involved a flurry of activity in particular the purchase of Grafton Street and the sale of the other two properties in a context where the Plaintiff was profoundly grief stricken and where she had not previously had any involvement let alone capacity to understand or manage her financial affairs in her own interest. In the midst of this activity, she was provoked to make a will leaving her estate equally to her sons. There is more than a healthy suspicion that during 2011 she was quite confused about what was going on and more to the point to the effect of what she was undertaking with the hand of the Defendant involved at every turn. To that extent I accept Dr Bhanji’s observations and his is the preferable view.

499. I accept that Dr Humphrys made important, relevant and contemporaneous observations of the Plaintiff. In particular Dr Humphrys was clearly so concerned about the Plaintiff that he monitored her mental state from time to time. He was impressive and indeed persuasive. I accept his evidence unequivocally.

Conclusions on the lay evidence

501. It is appropriate before I come to a consideration of the various issues in the trial to record my impressions of and conclusions on the various lay witnesses.

502. I accept Ms Roxburgh and Ms Calcutt’s evidence entirely so far as they are concerned, in my view they gave their evidence candidly and forthrightly.

503. Likewise Ms Macjen. Her observations are clearly pertinent and again I accept her evidence.

504. So far as GFP and MFP are concerned again I accept their evidence. They make pertinent observations as to their mother’s cognitive issues and my observation was that when asked to make concessions they did so readily.

505. Necessarily all of the above witnesses were only able to provide various snapshots taken over time of their observations of the Plaintiff, her moods and her various cognitive issues. Not one of them unsurprisingly could provide a complete portrait. But together especially when juxtaposed against the medical evidence their account provides a very telling narrative of the Plaintiff in the years 2011 and following.

506. So far as the Defendant’s witnesses are concerned each purported to give their own impressions of the Plaintiff as a result of their various interactions with her. However in my view their evidence was to my mind not as persuasive nor as candidly and forthrightly given as those witnesses called by the Plaintiff.

507. To start, I found the Defendant to be an entirely unsatisfactory witness. He gave his evidence in a defensive and argumentative manner. Notwithstanding his lack of experience as a witness he is not unintelligent and yet notwithstanding more than the odd rebuke he persisted in answering back and/or answering in an argumentative fashion.

508. He was I am satisfied the source of much of the information provided to medical practitioners and/or nursing staff from time to time about his mother’s mental condition despite his denials. To the point of absurdity in my view he attempted to distance himself from contemporaneous reports which could only be a reference to him and attempt to point the finger at one of his brothers with whom he obviously has some long term issues. At times I consider he gave untruthful evidence. I do not regard him as a reliable historian. On numerous occasions during the course of his evidence he attempted to downplay the Plaintiff’s emotional and mental problems no doubt fully appreciating that it would be against his interest to tell the truth. I regard certain of the hospital records where there is a reference to the “Plaintiff’s son” to be a reference to him and accurately attributing history and/or information supplied by the Defendant (TB 732, 1050-3, 1212-25, 1230).

509. I should observe in passing that the Plaintiff appears to have entertained the idea namely that her other two sons had been assisted in some way by she and her husband such as to be able to acquire properties overseas. GFP admitted that he had received an amount of $10,000 at one point from his father to assist in the renovation of his home in Canada. MFP rejected the notion that he had received any monies towards the acquisition of any property he may own overseas.

510. It seems to me that the idea that the Plaintiff’s other two sons had been looked after and that the Defendant had in some way or other missed out is an idea which on the evidence is very likely to have come from the Defendant. There appears to be no factual basis for the assertion and no attempt was made by the Defendant to provide any evidence for that assertion. Insofar as the Plaintiff told Dr Mulholland that that was the fact it seems to me on the cards her belief to have been sourced to the Defendant. At the very least it displays further confusion on the part of the Plaintiff, which the Defendant was no doubt happy to exploit. In my view he is the likely source of such an assertion given his bitterness over his predicament as he sees it and no doubt because his brothers have made successful lives for themselves overseas, in contrast to his.

511. In addition, in my view he must have permitted his mother to labour under the impression that although the property was in his name it was in fact hers. If that is right it would explain why she was prepared to acquiesce in the lion’s share of the moneys produced by the sale of Tuross Head and Queens Park going into a property which was solely in his name.

512. It was clear that the Plaintiff was encouraged to believe that there was a benefit at least in the property being put into the Defendant’s name for example the possibility of obtaining a first home owners’ grant. Although that was not tenable as a matter of law it appears to have been part of her belief as to the reasons why the property was placed in his name.

513. The balance of the evidence called in the Defendant’s case was entirely underwhelming. By design or by default the Defendant associated himself with a motley group of persons, in Mr Mawer, Mr Anstee and Mr Christie.

514. Mr Mawer, the conveyancer, in my view was in a hopeless position of conflict. He was in my view supremely unqualified to make any assessment of capacity of the Plaintiff and whether he purported to do so routinely or not I am satisfied at best he made the most superficial attempt to assess the Plaintiff’s capacity in this case. He saw the possibility of conflict but resolved it in his own mind in a most unsatisfactory way. His lack of diary notes especially for what he alleged was a critical meeting not only underscores his lack of professionalism but if such a meeting did take place at all I am satisfied he has largely manufactured the account of what occurred because of a belated realisation of the gravity of the situation.

515. He knew nothing of the Plaintiff’s other assets or liabilities and was in no position to assess the prudence or otherwise of the transactions she was undertaking. In my view he failed appallingly in the discharge of any professional obligation insofar as it involved making an appropriate assessment on the question of conflict of interest. For him to say that he was concerned and “quizzed” the Plaintiff is hardly an answer. Above all else he should have refused to act if indeed he was at any time acting for the Plaintiff given the circumstances especially without her obtaining independent legal and if needs be accounting advice or obtained relevant consents in writing.

516. In my view for all practical purposes he regarded the Defendant as his client. The Defendant was the one I am satisfied who had initiated the various transactions. He was the one who made contact with Mr Mawer in the first place as the result of the recommendation from St George Bank.

517. Mr Mawer’s 18 years experience partly as a licensed conveyancer and partly as a paralegal left him ill-equipped in my view competently to deal with the problem he was confronted with. He was neither competent nor qualified to give the Plaintiff the independent advice she needed. He was in no position to make any assessment nor in my view did he do so notwithstanding the obvious imprudence of the transaction. He was also arguably in breach of clause 12 of the Conveyancers Licensing Regulation 2015 (NSW).

518. The evidence of Mr Christie solicitor can be put to one side almost immediately. The evidence is that he only attended upon Mr Anstee and others for approximately five minutes and exclusively for the purposes of identifying the Plaintiff as the deponent of the statutory declaration. The suggestion that he was or indeed was capable of making any assessment as to the Plaintiff’s capacity in the short time he was there is not only bizarre but it is simply ridiculous. His examples of what he would look for in the event that he were ever charged with making an assessment of someone’s capacity were even more bizarre.

519. Mr Anstee a former barrister, in my view was also in a position of total conflict. In practical terms again I believe he regarded the Defendant as his true client and still does. He fully appreciated the reality, namely that the whole purpose of the statutory declaration was to protect the Defendant lest there be some challenge to the transactions which took place in 2011. He made no meaningful attempt whatsoever to resolve what was an obvious conflict. Further the real issue was whether the Plaintiff had capacity in 2011. He must have appreciated that, yet none of the medical reports or evidence that he saw dealt with that issue, nor did the statutory declaration expressly and/or adequately or indeed at all.

520. Any person competently requested to advise on such an issue would clearly advise the retention of someone like Dr Bhanji for the purpose of opining on the question of whether the Plaintiff had capacity at the relevant time, not years after the event. His responses to Ms Henderson when she attempted to engage with him were clearly indicative of who he thought his real client was. Under the pretence that the Plaintiff currently had dementia and was therefore unable to instruct her current solicitor (a view that I am satisfied he received from the Defendant) and yet although he apparently thought all along he was acting for the Plaintiff his response to a request for assistance exposes only too clearly that at all relevant times his real client in his own mind was the Defendant or at best he was wholly confused.

521. Again his alleged attempt made at the time to check the Plaintiff’s capacity and his failure to understand the real question he was confronted with only highlights in my view his incompetence. In fairness his practice prior to him giving up his practising certificate was in the area of criminal law. Although he asserted that in his early days at the Bar he had some equity and commercial experience he certainly did not portray any of that experience in the way in which he dealt with the problem he was confronted with. Again his apparent attempt to check the Plaintiff’s capacity was superficial in the extreme. The person after all with the real interest in the statutory declaration was the Defendant.

522. His concern in more recent days was whether the Defendant would be able to pay him for the fees he had charged to date. His appreciation that payment is contingent upon the Defendant winning the case also explains a good deal. In reality he must fully have appreciated at all times that he was there to prepare a statutory declaration so as to protect the Defendant in the event of litigation. That placed him in a position of hopeless conflict which he could neither see nor was able adequately to confront.

523. It is clear from what I have said above that insofar as either the Defendant, Mr Mawer or for that matter Mr Anstee and to a much lesser extent Mr Christie purport to give evidence of a snapshot variously in relation to the Plaintiff’s capacity from time to time, I reject their evidence entirely in that regard. I do not do so on the basis that they were not proffered as experts. That is plain enough. It is clear to me that none of them had the capacity or the competence accurately or adequately to judge the Plaintiff’s capacity. Their evidence is of no assistance to the Defendant.

524. On the other hand Mr Noble’s statement indicated that on the brief occasions he dealt with the Plaintiff he formed the impression that she understood the purport of their respective conversations. So much can be accepted.

525. However Mr Noble of course had a business relationship with the Plaintiff’s husband which by all accounts he has honourably and faithfully followed. It was of course the Plaintiff’s husband with whom he negotiated the transaction, and it was of course on Mr Noble’s expert advice the valuable coin collection was put together. There is no suggestion to the contrary. Whilst I accept Mr Noble’s evidence entirely in my view it really does not assist the Defendant in any material respect whatsoever.

Conclusion

526. Prior to her husband’s death a number of persons observed that the Plaintiff was having memory and/or cognition issues. This was first perhaps observed most importantly by her husband and then by their doctor, Dr Humphrys. It was also observed by the Defendant.

527. The Plaintiff and her husband had enjoyed a long, happy and close relationship. Her husband took care of all financial matters. There is no evidence she had any part to play in the acquisition, sale or reorganisation of their various real estate assets. Equally there is no evidence that she ever played any role of setting up and/or monitoring of the annuities or the organisation and/or dealing with bank accounts.

528. Her husband had also put together a share portfolio again without any obvious input from the Plaintiff. With the expert assistance of Mr James Noble the Plaintiff’s husband had become both interested in and knowledgeable about coins and put together a very substantial coin collection. Again there is no evidence the Plaintiff played any role in his hobby or the putting together of such a collection, or the negotiation of any arrangements with Mr Noble.

529. Indeed I am satisfied that she discovered at least the detail of the value of the coin collection, perhaps the existence of the annuities and the likely details of bank account number 1444 probably for the first time just prior to her husband’s death. So much is clear from the terms of her notes (Exhibit P4) taken at her dying husband’s bedside.

530. By all accounts the Plaintiff a former nurse could be described as a previously high functioning individual, with a feisty personality and a good sense of humour. Because of her current physical and mental state she was unable to give evidence before me and in that regard I accept Dr Bhanji’s evidence as to her current situation. Although she swore an affidavit no reliance has been placed upon it for good reason.

531. Due to the closeness of their relationship the Plaintiff was profoundly affected by her husband’s illness. For example upon the realisation of his impending demise and admission to hospital she herself required admission to Canberra Hospital in 2011. The stress associated with her husband’s illness may well and in all probability did exacerbate her cognition and memory issues.

532. Prior to his death there were periods when she and her husband would visit Sydney and stay from time to time with the Defendant at the Queens Park apartment and when they were perhaps not travelling they would spend the bulk of their time in Tuross Head mixing with those who obviously became their close group of friends.

533. There is no evidence that the Defendant was a regular visitor to Tuross Head although his parents spent time with him as I have said when they visited Sydney. Their other two sons had largely, except for GFP in the period from 2001 to 2003 settled overseas. To that extent apart from visits one way or the other from time to time, telephone and email contact aside, the Plaintiff and her husband saw much less of their other two sons and their families.

534. I am satisfied that after her husband died and for some months if not years after she had great difficulty in coping and coming to terms with her loss.

535. The Plaintiff hated the thought of being alone and this undoubtedly provoked her to move to Sydney to live with the Defendant upon the death of her husband notwithstanding her many friends in Tuross Head. I am satisfied however that given the emotional turmoil she went through following her husband’s death she was simply not going to be happy living anywhere. But if she was to live in Australia and with a relative the Defendant was in effect her only choice.

536. Her vulnerability at this time was real and ever present and yet to some extent she did keep up a brave front especially in the company of strangers where her customary bluster and humour would not have permitted her to display any vulnerability except for those who knew her well. With the Defendant and her very close friends and the odd medical practitioner her confusion, cognitive and memory issues and severe emotional vulnerability were obvious.

526. I am satisfied she had never had a need nor any interest in financial matters. She was undoubtedly relieved that the Defendant was prepared to take over that burden. Moreover I am satisfied that in her emotionally vulnerable state she was prepared to go along with whatever the Defendant suggested in relation to financial matters. I do not accept that she played any meaningful role in the sale of Queens Park, Tuross Head nor the purchase of Grafton Street, nor for that matter the ultimate purchase of Tyagarah. I am satisfied that the Defendant initiated each of those transactions and the Plaintiff simply went along with them.

527. Of course the Plaintiff was to an extent involved in those transactions, in particular in signing necessary documentation, but I do not accept that she fully understood precisely what was going on and she certainly never had anyone independently explain to her what her needs were, nor discuss the consequences of her actions and whether they were in her best interests or not. As such I am satisfied that she never made an informed choice about the various transactions.

528. There is no evidence she understood anything about real estate values. The Defendant on the other hand had been writing copy for real estate advertisements for some years and in that context I am quite certain he not only kept his eye on the real estate market in Sydney but clearly made contacts in that area especially with real estate agents.

529. There is no evidence that she or her husband had actively been contemplating the sale of Tuross Head or Queens Park. There is indeed no evidence that the Plaintiff herself had any strategy which involved the sale of those properties and for that matter the purchase of the Grafton Street property. I do not consider she alone would have been able to focus on her assets and her liabilities even if she knew the extent of them or to work out appropriate timing for the sale and purchase of various properties especially following her husband’s death. I am satisfied after her husband’s death she became rapidly and entirely dependent upon the Defendant as she had been upon her husband for all matters financial.

530. In relation to the Grafton Street property I am satisfied it was the Defendant who sought it out and suggested to the Plaintiff it be purchased ultimately in his name. I am also satisfied he led the Plaintiff to believe it was still somehow hers. There is no evidence as to what other enquiries the Defendant made as to prospective properties to purchase. On the other hand, the Plaintiff certainly inspected no other property other than the Grafton Street property. I am satisfied she did not exercise any freedom of choice in relation to Grafton Street. She was simply presented in my view with a choice made by the Defendant and she went along with it.

531. It is important to observe that the sales process for Queens Park (allegedly a property intended for the Defendant) commenced on or about 9 September 2011 a few weeks after her husband’s death.

532. There is simply no evidence that she had any capacity to make an assessment of what her personal financial needs would be going forward or indeed what was in her best interests. In my view she had no capacity to assess the consequences of the various transactions, for example to place in the Defendant’s sole control the lion’s share of the cash produced from the sale of Queens Park and Tuross Head.

533. In particular by reason of her aversion to going into a nursing home she had no capacity nor did she ever receive from the Defendant or anybody else, an objective analysis of what she may require by way of financial assistance if for example home care is what she ultimately wanted.

534. As I have also said this flurry of activity in 2011 necessarily has to be seen in a context where in the midst of it all she made a will leaving her estate equally to her three sons in October of that very year. In my view that is one of the most significant features of her lack of comprehension. For her to have made a will leaving her estate equally to her three sons but at the same time engage in multiple real estate transactions placing the lion’s share of the proceeds solely in the Defendant’s name and control, rather suggests that she did not fully appreciate the consequences of her actions.

535. It is plain and obvious that the Plaintiff was never given the benefit of any independent legal or accounting advice as to her rights or needs, prior to these various transactions. For her to continue to believe as is obvious from numerous exchanges with others that although in the Defendant’s name the property at Grafton Street or Tyagarah was somehow or other still hers shows if nothing else significant confusion about the effect of what she had done.

536. I am satisfied that the Defendant played upon her emotions and either led her to believe whilst in his name (whether it be to secure a first home owners’ grant), it was and remained in fact hers. I am also satisfied that the Defendant knew the consequences of the transactions was to move the lion’s share of the cash from his mother’s real estate assets into his name alone and hence under his sole control, and out of hers. He never gave a moment’s thought to his mother’s present or future needs. He never troubled himself as to how she would survive if she needed increased medical care and attention. Equally on the evidence he never even promised to look after her for the rest of her life, and never offered to put anything in writing to that effect.

537. I am satisfied that he was driven entirely by his own interests and his bitterness towards one or both of his brothers, and he was consumed by self-pity. He showed abject disinterest in his mother’s wellbeing. Instead he busied himself seeking out people to put his own plans in place and when he became nervous in 2013 about the consequences of what he had done he tried to shore up his position by organising the statutory declaration. Again I am not satisfied it was his mother’s idea at all.

538. I am satisfied that his mother in a highly emotionally charged and confused state wanted to please the Defendant and went along with the various activities he had organised. I am satisfied the Defendant knew she had merely succumbed to his wishes and he also appreciated everything he did was for his benefit alone. He clearly took advantage of her vulnerable and confused state.

539. The suggestion that the Defendant was merely doing what his mother wanted I consider to be quite disingenuous. He knew above all others what she was going through with her cognition and memory issues and her profound grief and yet with obscene haste he engineered the various transactions. There was no real benefit flowing to his mother in her giving him the Grafton Street property or for that matter the Tyagarah property. He had paid for nothing, she on the other had paid for everything. The purchase prices, professional fees, stamp duties and renovations to Tyagarah were all from the Plaintiff’s resources. In so far as the Defendant suggests to the contrary I do not accept his evidence.

540. In my view in accordance with the authorities the Defendant has engaged in unconscionable conduct. The Plaintiff was subject to a special disadvantage comprised of her profound grief and deteriorating mental acuity. The Defendant knew of the existence and effect of the special disadvantage and unconscientiously took advantage of it.

541. Further, and in the alternative, I am of the view that the above facts also support a finding of undue influence. That is, the Plaintiff’s will was so subordinated to the Defendant that the impugned transactions raise a presumption of undue influence that was not rebutted. The transactions were improvident and procured by the Defendant such that they ought to be set aside between the Plaintiff and the Defendant.

542. In the light of my findings, I am inclined to make some of the declarations and orders sought by the Plaintiff, inter alia, in the Amended Summons dated 4 November 2016 at [13]-[21].

543. However, I will hear submissions, if necessary on the precise declarations or orders sought.

544. I will also hear the parties on costs if necessary.

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Amendments

26 April 2018 - para [547] our to out

Decision last updated: 26 April 2018